CBCA 7761

DENIED: December 5, 2023 CBCA 7761 REAL LION LOGISTICS SERVICES COMPANY, Appellant, v. DEPARTMENT OF STATE, Respondent. Ahmad Farzad, President of Real Lion Logistics Services Company, Kabul, Afghanistan, appearing for Appellant. Matthew S. Tilghman, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN, ZISCHKAU, and CHADWICK. CHADWICK, Board Judge. Appellant, Real Lion Logistics Services Company, attempted in August 2021 to arrange a belated delivery of construction supplies under a purchase order issued by the United States Embassy in Kabul, Afghanistan. Respondent, Department of State, was in the process of evacuating the embassy and withdrawing from the country. No delivery occurred. Appellant alleges that the incoming Taliban Government seized the supplies. Appellant seeks to recover its expenses. Appellant, which is unrepresented by counsel, has not plainly specified a legal theory. Respondent seeks summary judgment. Appellant filed an unresponsive position statement, two months late. We grant the motion and deny the appeal. CBCA 7761 2 Background We draw the following facts from appellant’s claim, which the Board designated as the complaint, and images shown therein, as cited in respondent’s statement of undisputed material facts. See Board Rule 8(f)(1) (48 CFR 6101.8(f)(1) (2022)).1 No later than August 10, 2021 (respondent thinks it actually happened on August 6), the Kabul embassy emailed appellant a unilateral purchase order for construction supplies. The purchase order stated that the “F.O.B. [free on board] POINT” was “Destination.” The order also included the Contract Terms and Conditions—Commercial Items (OCT 2018) clause, which stated that the contractor bore the “risk of loss” until “[d]elivery of the supplies . . . if transportation is f.o.b. destination.” 48 CFR 52.212-4(j)(2) (2020). The order stated that delivery was due no later than August 11. At 11:40 p.m. on August 11, appellant notified the embassy by email that it could deliver the supplies on August 12. Appellant did not hear back from the agency until February 13, 2022, when respondent issued a unilateral modification rescinding the purchase order. Meanwhile, the Taliban captured Kabul. In November 2022, appellant submitted a claim for $64,647 as compensation for “Purchased and Lost Material.” Appellant alleged in the claim that on August 15, 2021, “Taliban took over the Kabul City (Capital of Afghanistan). While we lost our House at Panjshir, and warehouse at Kabul Provinces. The losses were all a combination of Taliban Robberies from our Warehouses. . . . [T]hey (Taliban) took all our material and st[ole] them from our Company’s Stock.” The theory of contractual entitlement appeared to be that appellant “did all proper communication as well as sent several notice[] emails to the Embassy.” Respondent denied the claim in February 2023. 1 Respondent expresses doubt about the authenticity of some of the documents pictured in the claim but accepts them at face value for purposes of the motion. See Rule 8(f)(1) (movant may cite “admissions in pleadings”). Appellant filed no Rule 8(f)(2) statement of genuine issues and does not dispute the facts it previously alleged. As a result, respondent’s motion resembles a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2004). As the Board has no rule that corresponds to Rule 12(c), we address the motion as respondent has styled it. CBCA 7761 3 Proceedings Before the Board Appellant filed a timely notice of appeal, attaching the claim, which the Board designated as the complaint under Rule 6(a). Respondent moved for summary judgment in July 2023 in lieu of filing an answer.